The Volokh Conspiracy - NCAA Mascot Litigation?

Florida State's President T.K. Wetherell is making rumblings that it will sue if the NCAA follows through with its prohibition on allowing teams with "hostile or abusive" mascots from entering postseason tournaments:

"We're not going to change the name - that's not an option," Wetherell told the Tallahassee Democrat Friday evening. "We would not do that."

Wetherell, who was angered by the decision, said he had it in his mind "to paint (the Seminole logo) three times as big on the field (at Doak Campbell Stadium)."

The NCAA Executive Committee surprised FSU when it announced the bans on Friday.

Wetherell reiterated comments he made to the Democrat on Wednesday that, in the face of a ban, he would seek legal action against the NCAA. He said that because the NCAA, in his opinion, deviated from its procedures in reaching its decisions, "the first thing the court would do is throw it out based on the NCAA's process."

Wetherell also mentioned that FSU might have grounds for economic restitution.

"I don't foresee any circumstances short of the NCAA reversing this decision that will not put us in court," said Wetherell, whose day included wrist surgery after he fell in the morning. "We've got lawyers looking at it right now."

The same article has this interesting perspective on the issue by Max B. Osceola, Jr., a member of the Tribal Council of the Seminole Tribe of Florida, which has endorsed the use of the Seminole mascot and eas not consulted by the NCAA:

Osceola said the Seminole Tribe of Florida disagrees with the NCAA's decision and determination that FSU's nickname and symbols are "hostile and abusive."

***

"It's like history - they left the natives out," Osceola said. "They have non-natives telling natives what's good for them or how they should use their name. You have a committee made up of non-natives telling people that they can not use a native name when you have a native tribe - a tribal government, duly elected and constituted - that said they agree with Florida State.

"There are some names, like the NFL team the Washington Redskins - that's derogatory. Those are abusive and hostile but not this."

I have not seen any response to FSU's comments from NCAA headquarters in Indianapolis, Indiana or from NCAA President Myles Brand, former President of the ~~University of~~ Indiana University.

Update:

If anyone can illuminate me on the likely nature of FSU's claim here, I would be interested. My impression is that they are thinking about breach of contract, on the basis that the comment that the NCAA failed to follow its own procedures. I could also see trying an antitrust action if the NCAA excludes them from participating in profitable postseason competition on the basis of this particular rule, but it isn't exactly clear to me what that action would look like. Presumably this might collapse into the breach of contract claim, as the antitrust claim presumably would be predicated on the theory that the NCAA exceeded its authority or failed to follow its own procedures. As for civil rights or First Amendment claims, I'm no expert on that, so perhaps Eugene or someone else can provide guidance on that. The NCAA is a private organization, and it has been my understanding that in general the First Amendment would not apply in this context.

So if FSU brings a claim, presumably it would be predicated on its contract with the NCAA. I would be interested in the insights of any readers or other Conspirators on this.

Update:

A Hoosier informs me it is properly Indiana University, not University of Indiana. I have corrected the post accordingly.

Update:

	[Todd Zywicki, August 11, 2005 at 11:56am] Trackbacks NCAA Mascot Litigation? Florida State's President T.K. Wetherell is making rumblings that it will sue if the NCAA follows through with its prohibition on allowing teams with "hostile or abusive" mascots from entering postseason tournaments: "We're not going to change the name - that's not an option," Wetherell told the Tallahassee Democrat Friday evening. "We would not do that." Wetherell, who was angered by the decision, said he had it in his mind "to paint (the Seminole logo) three times as big on the field (at Doak Campbell Stadium)." The NCAA Executive Committee surprised FSU when it announced the bans on Friday. Wetherell reiterated comments he made to the Democrat on Wednesday that, in the face of a ban, he would seek legal action against the NCAA. He said that because the NCAA, in his opinion, deviated from its procedures in reaching its decisions, "the first thing the court would do is throw it out based on the NCAA's process." Wetherell also mentioned that FSU might have grounds for economic restitution. "I don't foresee any circumstances short of the NCAA reversing this decision that will not put us in court," said Wetherell, whose day included wrist surgery after he fell in the morning. "We've got lawyers looking at it right now." The same article has this interesting perspective on the issue by Max B. Osceola, Jr., a member of the Tribal Council of the Seminole Tribe of Florida, which has endorsed the use of the Seminole mascot and eas not consulted by the NCAA: Osceola said the Seminole Tribe of Florida disagrees with the NCAA's decision and determination that FSU's nickname and symbols are "hostile and abusive." * "It's like history - they left the natives out," Osceola said. "They have non-natives telling natives what's good for them or how they should use their name. You have a committee made up of non-natives telling people that they can not use a native name when you have a native tribe - a tribal government, duly elected and constituted - that said they agree with Florida State. "There are some names, like the NFL team the Washington Redskins - that's derogatory. Those are abusive and hostile but not this." I have not seen any response to FSU's comments from NCAA headquarters in Indianapolis, Indiana or from NCAA President Myles Brand, former President of the ~~University of~~ Indiana University. Update: If anyone can illuminate me on the likely nature of FSU's claim here, I would be interested. My impression is that they are thinking about breach of contract, on the basis that the comment that the NCAA failed to follow its own procedures. I could also see trying an antitrust action if the NCAA excludes them from participating in profitable postseason competition on the basis of this particular rule, but it isn't exactly clear to me what that action would look like. Presumably this might collapse into the breach of contract claim, as the antitrust claim presumably would be predicated on the theory that the NCAA exceeded its authority or failed to follow its own procedures. As for civil rights or First Amendment claims, I'm no expert on that, so perhaps Eugene or someone else can provide guidance on that. The NCAA is a private organization, and it has been my understanding that in general the First Amendment would not apply in this context. So if FSU brings a claim, presumably it would be predicated on its contract with the NCAA. I would be interested in the insights of any readers or other Conspirators on this. Update: A Hoosier informs me it is properly Indiana University, not University of Indiana. I have corrected the post accordingly. Update:**